Is everything covered by the Americans with Disabilities Act (ADA)? Although we all know the ADA broadly defines the conditions that are protected disabilities, the Seventh Circuit Court of Appeals’ decision in Shell v. Burlington Northern Santa Fe Railway Company, shows that there are limits. Earlier this year, the Seventh Circuit held that obesity alone, without another physiological condition, is not a protected disability. And with the Shell decision last week, the Seventh Circuit held that the ADA does not reach discrimination based on an employer’s belief that an employee is likely to develop a disability in the future.
THE UNDERLYING FACTS
Ronald Shell was a rail yard employee for 33 years. His job included work as a heavy machine operator. When BNSF bought his former employer, he and all other employees had to re-apply for their jobs. BNSF made Shell a conditional offer of employment, subject to a medical examination. Shell’s medical examination showed that he suffered from no current health conditions. However, his body mass index (BMI) was 47.5, and he was considered obese.
Pursuant to company policy, BNSF does not hire applicants for safety-sensitive positions, such as the heavy machine operator position Shell applied for, if their BMI is 40 or above. BNSF justifies this rule because a person with a BMI over 40 is at risk for developing health conditions that could result in a sudden loss of consciousness, such as sleep apnea, diabetes, and heart disease, and the unexpected onset of those conditions poses a safety hazard. Because Shell’s BMI exceeded 40, BNSF withdrew its offer of employment.
Shell claimed that BNSF’s refusal to hire him violated the ADA because it was based on BNSF’s perception that he had a disability. The district court sided with Shell and denied BNSF’s motion for summary judgment. The Seventh Circuit granted an interlocutory appeal to decide the following issue: “whether the ADA’s regarded-as provision encompasses conduct motivated by the likelihood that an employee will develop a future disability within the scope of the ADA.” The Court also invited the EEOC to weigh in with its position.
Shell argued that, because BNSF refused to hire him because it feared he would develop a future impairment, the company essentially treated him as if he currently suffered from an impairment. The EEOC supported Shell’s position by arguing that the purpose of the ADA is to “combat society’s accumulated myths and fears about disability and disease” and by pointing to guidance in the EEOC Compliance Manual that indicates future impairments are covered by the ADA.
THE SHELL HOLDING
The Seventh Circuit sided with BNSF, relying on the plain language of the statute. The ADA states that it protects people who are regarded as having an impairment. In this case, BNSF regarded Shell as likely to develop an impairment, but it did not regard him as having one. The Court held the ADA only protects a person who currently has a disability or is perceived to currently have a disability. Under this ruling, an employer’s fear that a person will develop a disability in the future is not a basis for an ADA claim.
This case shows that the ADA’s scope of protected disabilities, while broad, is not unlimited. But employers should still use caution when making decisions based on an employee’s likelihood of developing future conditions. While obesity, standing alone, is not a disability, many employees who are likely to develop future medical conditions may already have some other underlying condition that entitles them to ADA protection.